by Justin D. Anderson
CHARLESTON — The state Supreme Court will hear arguments in the case of a same-sex couple in Fayette County fighting a judge's order that the baby girl they've been raising since birth should be removed from their home and placed in one with a married man and woman.
Kathyrn Kutil and Cheryl Hess argue that Fayette Circuit Judge Paul Blake exceeded his authority and violated their constitutional rights by ordering that the 11-month-old be immediately transitioned into a "traditional" home.
They say the judge has effectively excluded them as potential adoptive parents of the child simply because of their sexual orientation.
The couple also contend that the state Department of Health and Human Resources - while initially supporting their adoption of the infant - changed course in a later hearing and advocated that the child be removed because there was one too many children already living in the couple's Oak Hill home.
In their petition to the Supreme Court, Kutil and Hess allege that the DHHR seems to be more worried about the political fallout of allowing a same-sex couple to adopt the girl than what's best for her.
The couple contends Judge Blake is "setting a dangerous precedent" for discriminatory treatment of non-traditional families who want to adopt. State law allows either single individuals or married couples to adopt.
The Supreme Court on Tuesday voted 4-1 - with Justice Elliott "Spike" Maynard dissenting - to review the case. Arguments are set for March 11.
The girl was born Dec. 8, 2007 in Charleston to a drug abusing mother, according to court records. The baby had cocaine, opiates and benzodiazepines in her system and underwent withdrawals from the drugs after birth.
The father of the girl was unknown and DHHR could not find any blood relatives to take her in, so the agency placed the girl with Kutil and Hess on Christmas Eve, the day she was released from the hospital.
The couple is approved by the DHHR as foster and adoptive parents, the petition says. Kutil recently adopted a 12-year-old girl whom she'd been fostering for over two years.
The Fayette circuit court terminated the biological mother's parental rights in a Nov. 6 order, making the infant eligible for adoption.
Previously, the child's legal advocate, Thomas K. Fast, had filed a motion with the court to remove the girl from the same-sex home. That motion had been pending since Jan. 24.
At a Nov. 6 hearing, the court considered DHHR's plan for permanent placement of the girl, which included allowing Kutil and Hess to adopt her.
Fast objected to this part of the plan and Judge Blake agreed, saying the DHHR was trying to take discretion away from the court as to deciding the best interests of the child.
The couple's lawyer, Anthony Ciliberti, described the women this way in a transcript: "What I can say about these two women is that they are far and above, based on my experience in dealing with them . . . they are far and above conceivably the best foster parents we have in this county."
Ciliberti declined to comment for this story, saying the parties have agreed to confidentiality.
Judge Blake, during that Nov. 6 hearing, blamed himself for allowing the case to get messy.
